Exhibit 10.3
AMENDMENT NO. 1 TO
TRANSITION AND SUCCESSION AGREEMENT
THIS AMENDMENT NO. 1 TO TRANSITION
AND SUCCESSION AGREEMENT (this “Amendment”) by and
between Mylan Laboratories Inc., a Pennsylvania corporation (the
“Company”), and Louis J. DeBone (the
“Executive”), is made as of December 2, 2004.
WHEREAS, the Company and the
Executive are parties to that certain Transition and Succession
Agreement dated as of December 15, 2003 (the
“Agreement”); and
WHEREAS, the Company and the
Executive wish to amend the Agreement, as set forth below;
NOW, THEREFORE, for good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
| 1. |
Section 8 of the Agreement is hereby amended and restated
in its entirety to read as follows: |
Section 8. Certain Additional Payments by the Company.
(a) Whether or not the Executive becomes entitled to any
payments hereunder, if any of the payments or benefits received or
to be received by the Executive (including any payment or benefits
received in connection with a Change of Control or the
Executive’s termination of employment, whether pursuant to
the terms of this Agreement or any other plan, arrangement or
agreement) (all such payments and benefits, excluding the Gross-Up
Payment, being hereinafter referred to as the “Total
Payments”) will be subject to the excise tax (“the
Excise Tax”) imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the “Code”), the
Company shall pay to the Executive an additional amount (the
“Gross-Up Payment”) such that the net amount retained
by the Executive, after deduction of any Excise Tax on the Total
Payments and any federal, state and local income and employment
taxes and Excise Tax upon the Gross-Up Payment, and after taking
into account the phase out of itemized deductions and personal
exemptions attributable to the Gross-Up Payment, shall be equal to
the Total Payments.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (i) all of the Total Payments shall be treated as
“parachute payments” (within the meaning of
Section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel (“Tax Counsel”) reasonably acceptable to the
Executive and selected by the accounting firm which was,
immediately prior to the Change of Control, the Company’s
independent auditor (the “Auditor”), such payments or
benefits (in
